Dorn v. Cartwright, No. 16578

• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas
• Writing for the Court: DIXON; It was in compliance with attorney Bryant's requirement that this suit was filed. After a trial before the court without a jury judgment was entered construing the will and codicil to mean 'that under the terms thereof the said plaintiff
• Citation: 392 S.W.2d 181
• Docket Number: No. 16578
• Decision Date: 28 May 1965
• Parties: Attie DORN, Appellant, v. J. W. CARTWRIGHT, Jr., Appellee.

Page 181

392 S.W.2d 181 Attie DORN, Appellant,
v.
J. W. CARTWRIGHT, Jr., Appellee. No. 16578. Court of Civil Appeals of Texas, Dallas. May 28, 1965.
Rehearing Denied June 25, 1965.

Nance & Caston and Robert G. Bush, III, Sherman, for appellant.

Brame & Brame, Sherman, for appellee.

DIXON, Chief Justice.

Appellee J. W. Cartwright, Jr. filed suit for declaratory judgment to construe a will. The purpose of the suit is to determine whether appellee has the right under the terms of the will to convey fee simple title to certain real property, in particular whether he has a right to convey such title to Melvin Kalmbach, with whom he has already entered into a contract of sale.

The defendants in appellee's suit are the surviving children, the children of deceased children and the heirs known or unknown of J. W. Carwright, Sr. Appellee is a son and appellant Attie Dorn is a daughter of J. W. Cartwright, Sr. Melvin Kalmbach is not a party to the suit.

J. W. Cartwright, Sr. died in 1925. He left a will and a codicil which were duly admitted to probate in 1929. The material parts of the will and codicil so far as this suit is concerned are as follows:

'Third:-Because my son, J. W. Cartwright, Jr., has lived with me and has cared for, aided and assisted me during my declining years, I do, hereby, give, devise and bequeath unto my said son, J. W. Cartwright, Jr., my 121 acres of land situated about 1 1/4 miles South-West of the town of Van Alstyne, in the A. Cartwright survey in Grayson County, Texas, To have and to hold the same in fee simple title forever, and he may sell, or otherwise dispose of same, or any part thereof, in any manner he may deem fit.'

'As a codicil to my above and foregoing Will bearing date November 29th, 1922, to which this codicil is attached to be taken and considered as a part thereof, I hereby will and direct that in case my said son, J. W. Cartwright should die without leaving any child or children of his own surviving, then all the property devised to him in my said will, shall revert back to and vest in my estate and be divided equally among my other children then living. In all other respects, my said will shall be and remain as it was written.

'Witness my hand this May 4th, 1925.'

J. W. Cartwright has no children of his own. In 1960 he adopted a stepdaughter, who is herself grown, married and has children.

On June 10, 1963 J. W. Cartwright, Jr. entered into a written contract with Melvin Kalmbach whereby for a consideration of $33,00 he agreed to sell and convey to Melvin Kalmbach the 121 acres of land referred to in the above quoted portions of the will. Kalmbach deposited the sum of $8,000 cash with Merchants & Planters Bank of Sherman, Texas, as down payment pending consummation of the sale. The remaining $25,000 of the purchase price is to be evidenced by a promissory note payable in annual installments covering a period of fourteen years, said note being secured by vendor's lien.

The contract of sale provides that seller shall furnish an abstract of title to the property which is to be conveyed free and clear of all encumbrances except those named. It also provides that if any title objections are made seller shall have a reasonable time to cure said objections and show good and marketable title.

The contract further provides that if seller fails to furnish good and marketable title the $8,000 cash in escrow with the bank shall be returned to Kalmbach, the purchaser. But if seller cures all objections to title and purchaser thereafter fails

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to consummate the contract, the $8,000 shall be retained by seller as liquidated damages. Purchaser is expressly given the right to enforce the contract by specific performance.

William R. Bryant, attorney at law, examined the abstract of title in behalf of his client, Melvin Kalmbach. In his written opinion he expressed uncertainty as to whether under the terms of the will of J. W. Cartwright, Sr. appellee has the right to convey fee title to the land in question. As a condition to his approval of the title he required that a suit be filed to construe the will and an adjudication be obtained declaring that appellee has the right to convey fee title.

It was in compliance with attorney Bryant's requirement that this suit was filed. After a trial before the court without a jury judgment was entered construing the will and codicil to mean 'that under the terms thereof the said plaintiff, J. W. Cartwright, Jr., has the power to sell and convey a fee simple title to the aforesaid 121 acres of land * * *.' The land is then described by metes and bounds.

Attie Dorn, sister of appellee J. W. Cartwright, Jr., is the only one of the defendants who has perfected an appeal from the trial court's judgment.

After suit was filed appellee and Melvin Kalmbach entered into another written agreement in regard to the land. This second agreement is in the nature of a lease agreement. A tenant under appellee had been in...